Citation Nr: 1203140
Decision Date: 01/30/12 Archive Date: 02/07/12
DOCKET NO. 08-07 369 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico
THE ISSUE
Entitlement to an increased rating for anxiety disorder, currently rated as 50 percent disabling.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
David S. Nelson, Counsel
INTRODUCTION
The Veteran had active military service from September 1989 to September 1993.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Albuquerque, New Mexico, Regional Office (RO) of the Department of Veterans Affairs (VA).
FINDING OF FACT
Throughout the rating period on appeal, the Veteran's anxiety disorder was manifested by sleep difficulties, a restricted affect, irritability and outbursts of anger, panic attacks, passive suicidal ideation, and memory impairment productive of occupational and social impairment comparable to no more than reduced reliability and productivity.
CONCLUSION OF LAW
The criteria for a rating in excess of 50 percent for anxiety disorder have not been met at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9400 (2011).
REASONS AND BASES FOR FINDING AND CONCLUSION
VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case.
Duty to Notify
Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004).
By correspondence dated in February 2006, March 2006, and May 2008 the Veteran was informed of the evidence and information necessary to substantiate the claim, the information required to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. 38 U.S.C. § 5103(a). The Veteran has been informed of the need for evidence demonstrating an increase in the severity of his disability and the effect that his service-connected disability has on his employment. Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). In the March 2006 letter the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As complete VCAA notice was not completed prior to the initial AOJ adjudication of the claim, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Importantly, the Board notes that the Veteran is represented in this appeal. Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of the increased rating claim such that the essential fairness of the adjudication is not affected.
Duty to Assist
The Veteran's service treatment records are associated with the claims file, as are VA and private medical records. The Veteran has undergone VA examinations that addressed the medical matters presented on the merits by this appeal. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the June 2006 and May 2008 VA examinations obtained in this case are adequate, as they included an examination of the Veteran and elicited his subjective complaints. The VA examinations described the Veteran's disability on appeal in sufficient detail so that the Board is able to fully evaluate the claimed disability. In short, the Board finds that VA's duty to assist in obtaining a VA examination has been met.
The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim.
Analysis
Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Thus, the Board must consider whether the Veteran's disability on appeal is entitled to staged ratings for any time during the appeal period. Hart v. Mansfield, 21 Vet. App. 505 (2007).
When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3.
The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical evidence for the applicable rating period on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.
Service connection for the Veteran's anxiety disability was granted in April 2005, and a rating of 30 percent was assigned. The Veteran's claim for an increased rating for his service-connected psychiatric disability was received in January 2006, and the August 2006 RO decision increased the rating for the Veteran's anxiety disorder to 50 percent disabling, effective January 31, 2006.
Diagnostic Code 9400 addresses anxiety disorder. Under that code, a 70 percent rating is provided for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: Suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.
A 100 percent rating is provided for total occupational and social impairment, due to such symptoms as: Gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9400.
The Board observes that to adequately evaluate and assign the appropriate disability rating to the Veteran's service-connected psychiatric disability, the Board must analyze the evidence as a whole, including the Veteran's GAF scores and the enumerated factors listed in 38 C.F.R. § 4.130, Diagnostic Code 9411. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002) (holding that "the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-IV [Diagnostic and Statistical Manual of Mental Disorders, 4th ed.].
Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32].
GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers), and scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV for rating purposes].
The evidence in this case includes VA psychiatric examination reports dated in June 2006 and May 2008, VA and private mental heath records, letters from private health care professionals, and statements from the Veteran and his ex-wife.
Based on medical records and the Veteran's credible reports of symptoms such as sleep difficulties, a restricted affect, irritability and outbursts of anger, panic attacks, passive suicidal ideation, and some memory impairment, the August 2006 RO decision increased the rating for the Veteran's anxiety disorder to 50 percent disabling. A review of the claims file, however, reveals that symptoms such as obsessional rituals which interfere with routine activities, depression affecting the ability to function independently, impaired impulse control, and spatial disorientation have not been shown. The February 2006 private treatment record noted indicated that the Veteran had some "OCD" (obsessive compulsive disorder), likes things perfect and clean. The diagnosis noted was anxiety disorder and there was a recommendation for evaluation for OCD. There was no diagnosis of OCD and no evidence of obessional rituals which interfere with routine activities. In the same manner, the Board can not find any mention of any speech or cognitive disorder, and it does not appear that the Veteran has ever asserted as much. It does not appear that the Veteran has ever claimed having hallucinations.
While the Veteran has indicated (for example, at the May 2008 VA examination) that he had thoughts of suicide, he also stated that he had not taken any action in that regard and felt it would have an impact on his family. The Board observes that a December 2007 VA treatment record noted that the Veteran's risk level for suicide was "Low\Nil." The Veteran's personal appearance and grooming has been described as casual and clean, and the record does not indicate, nor has the Veteran asserted, that neglect of personal appearance and hygiene have been consistently shown.
It is clear that the Veteran's anxiety has impacted his social functioning, and records indicate that the Veteran's marriage ended in a divorce in September 2007. The Veteran has reported, however, that he has increased his contact with his parents and siblings; in fact, the file indicates that the Veteran has made attempts to move in an effort to be closer to his family. As for occupational impairment, the Veteran has reported increasing stress associated with his employment, and has often had difficulties at work, including missing work, due to a combination of factors, including his headaches and his anxiety disorder.
The Veteran's GAF scores have included 55 (June 2006 VA examination) and 60 (May 2008 VA examination). Such findings tend to reflect moderate symptoms, and a review of the Veteran's anxiety symptoms do not reveal symptoms which more closely approximate the criteria for a rating of 70 percent. As such, a rating in excess of 50 percent for anxiety disorder s not warranted at any time during the appeal.
The Board notes that in adjudicating a claim the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences; for example, he is competent to report that he experiences certain symptoms due to his anxiety disorder. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). Further, and while the Board finds that the Veteran has been credible in his reports, as with the medical evidence of record, the Veteran's account of his anxiety symptomatology describes a rating consistent with a 50 percent rating. For example, while the Veteran has complained of problems with short-term memory, focus, and concentration, the VA examiners have described the Veteran as having satisfactory immediate, recent, and remote memory.
In reviewing the foregoing, the Board has been cognizant of the "benefit of the doubt" rule, but there is not such an approximate balance of the positive evidence and the negative evidence to permit a more favorable determination. Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
As for extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Court clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If so, then the assigned schedular evaluation is adequate, referral for extra-schedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation fails to reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 116. If additional factors are found, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extra-schedular rating. Id.
The evidence of record does not reveal that the Veteran's disability picture is so unusual or exceptional in nature as to render his schedular rating inadequate. The Veteran's disability on appeal is not one that is rated by analogy, but, instead, has been evaluated under the applicable Diagnostic Code, 9400, that has specifically contemplated the level of occupational and social impairment caused by service-connected anxiety disorder. Therefore, referral for assignment of an extra-schedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996).
A claim for entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is part of an increased rating issue when such claim is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that the evidence associated with the claims file reveals that the Veteran is currently employed and a TDIU claim is not raised by the record.
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ORDER
Entitlement to a rating in excess of 50 percent for anxiety disorder at any time during the appeal is denied.
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K.J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs